A new Polish government is in place, and it takes first important decisions. We hope that the new ministers will take a responsible and human approach to the issue of migration, as there is practically no such policy in Poland. Polish-Belarusian border, detention, pushbacks, legalisation of stay, work permit, the special-purpose act on Ukraine and family reunification: these are seven priorities that require changes in the Polish legislation relevant to people with experience of migration and refugee in Poland.
Which laws should be first amended to ensure that the rights of migrants and refugees are respected? We have prepared a legal analysis in which we draw attention to seven areas that the government should address imminently. We focus on existing legislation, which is either not compatible with international law or the Polish Constitution, which leaves room for abuse, or is simply flawed. We also look at legislation that should be introduced to guarantee respect for fundamental rights.
1. POLISH-BELARUSIAN BORDER
We have transmitted a full legal analysis, together with our requests, to the Minister of the Interior and Administration, the Minister of Justice, the Ombudsman, the Ombudsman for Rights of the Child and the members of the Parliamentary Group on Migration Policy. It is available here. Please find below a summary of the main changes.
Repealing the rules on pushbacks
Border authorities, who bring persons illegally crossing the Polish-Belarusian border back into the forest, rely on the rules on pushbacks. Migrants are pushbacked, often at risk of life or health. The courts have repeatedly pointed out that those provisions were adopted in excess of the statutory delegation, and they violate national and international law.
Repealing the possibility of leaving an application for international protection unconsidered
This provision infringes the provisions of Directive 2013/32/EU. Under the Directive, illegal crossing of the border cannot give grounds for leaving an application for international protection unconsidered.
2. DETENTION
Reintroduction of the maximum duration of stay in a detention center under the return procedure up to 12 months.
Detention centers are places similar to a prison, albeit the persons staying there have not committed any crime. In accordance with the current wording of Article 403(3a) of the Act on Foreigners, migrants may stay in detention for up to 18 months under the return procedure.
We call for the re-establishment of the previous wording of the Act on Foreigners, according to which migrants could stay in a detention center for a maximum period of 12 months.
Revoking the possibility of accommodating migrants in detention centers in rooms or cells with a standard of 2 m² per person.
Polish standards allowing migrants to be placed in a cell of less than 4 m² are incompatible with Poland’s international obligations, including the Convention for the Protection of Human Rights and Fundamental Freedoms and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The standard of 2 m² per person is lower than in Polish prisons.
The problem of overcrowding of detention facilities should be addressed by abolishing the practice of detaining migrants, who should not be placed there, including families with children, minors and victims of violence, and by prohibiting detention conditions that violate human rights.
Non-detention of children
In line with international standards for the protection of human rights, we call against the possibility of placing families with children and unaccompanied minors in detention centers for migrants.
3. OBLIGATION TO RETURN (SO-CALLED PUSHBACKS)
Extension up to 14 days of the time limit for lodging an appeal against decisions concerning migrants, including the return decisions (deportation decisions).
The latest amendment to the Act on Foreigners (of 9 March 2023) reduced the time limit for lodging appeals against decisions concerning migrants from 14 to 7 days.
The time limit for lodging an appeal in the above-mentioned cases is too short and makes it impossible for migrants to exercise their right to have the case examined by the administrative authority of second instance. In case of a return decision, migrants are forced to leave Poland or are deported, and consequently they may be exposed to health hazards and life-threatening circumstances in their country of origin.
Suspension of the enforcement of a return decision when an appeal is lodged with administrative court.
The impossibility of suspending the enforcement of the return decision when an appeal is lodged with the court means that the migrant can be expelled from Poland before his case is heard by a court, which is frequently the case. This provision violates EU law, and also, it deprives migrants of their right to an effective remedy.
4. LEGALISATION OF STAY
Introduction of a regulation to temporarily legalise residence of newly born migrants in Poland.
In the current legal situation, a child who is born in Poland is illegally staying on the Polish territory from the first moments of his life and is considered to be an undocumented migrant. We call for a provision which, by operation of law, would allow minor children to become legal residents in Poland for a period of 12 months from their date of birth.
Introduction of rules to protect the interests of migrants and their employers in case the application for legal stay is left unconsidered.
We call for allowing migrants to leave Poland within 30 days from the delivery date of the notification stating that their stay application has not been considered, and that during that period no return decision may be issued. Moreover, migrants’ employment until the delivery date of the notification stating that their stay application has not been considered, cannot be treated as illegal.
5. WORKING AND PURSUING BUSINESS ACTIVITIES
We call for the right of migrants to work in Poland during legalisation procedure, if they hold a work permit.
The excessive length of administrative procedures for legalisation of stay may lead to a situation where a migrant, despite his legal residence in Poland, is deprived of the right of legal and gainful employment for many months or even years, as he/she was not entitled to work at the moment of filing an application for residence permit.
We request that migrants staying in Poland on the basis of a temporary residence permit for the purpose of carrying out an economic activity should be entitled to continue their activity during the ensuing legalisation procedure, if, immediately before submitting the application, they were entitled to take up and pursue an economic activity on the same terms as Polish citizens.
6. SPECIAL-PURPOSE ACT
We call for a provision to ensure that work carried out by Ukrainian citizens is not considered to be illegal, in the event of non-compliance by the employer to notify the assignment of work.
Repeal of the rules on the running of deadlines for legalisation cases and claims against competent authorities for failure to act or lengthy conduct of proceedings.
In our view, these rules are in clear contradiction with Article 45(1) of the Polish Constitution, which guarantees everyone the right to a fair and public hearing without undue delay by a competent, impartial, and independent court. It is difficult to find any legal justification for imposing such far-reaching restrictions on the exercise of constitutional rights.
7. FAMILY REUNIFICATION
Permission to join a family member, who is a refugee residing in Poland, without having to meet the requirements of health insurance, stable income and residence, prior to the arrival to Poland.
We call for the amendment of Rule 159(2) of the Act on Foreigners, to allow that persons applying for permission to join a family member who has refugee status or subsidiary protection in Poland are exempt from the requirement of having health insurance, stable income and residence, irrespective of the timing of submitting the application.
Allowing family reunification of migrants who contracted religious marriage in their country of origin or were in an informal relationship prior to leaving the country; to unsupported ascendants in the country of origin and to adult children who are unable to support themselves.
In accordance with the current wording of Article 159(3) of the Act on Foreigners, family reunification may be carried out against specific family members, including spouses in a marriage recognised under Polish law and a minor child of a migrant or his/her spouse, including an adopted child.
It is necessary to allow spouses who possess only a religious marriage certificate, recognised as authentic in their country of origin, to apply for family reunification. In addition, family reunification should apply to spouses who have lived in long-term informal relationships in their country of origin and have formed families, provided that they are able to prove this with objective evidence. Parents of migrants who have obtained international protection in Poland and do not have any support in their country of origin or adult children should also be able to benefit from this procedure.
The proposals for amendments have been developed by our association’s legal team, which has been supporting over the last 17 years people with migration and refugee experience. We help them navigating through legal procedures related to legalisation of their stay in Poland.